Jan. 6 panel claims Trump 'engaged in criminal conspiracy'

Former President Trump may have committed a crime in his effort to keep the 2020 presidential election results from being certified, the House committee investigating the attack on the Capitol said in a court filing Wednesday evening.

The development came in the committee’s legal battle to compel documents from John Eastman, the lawyer charged with drafting the strategy for the Jan. 6 certification.

The panel said that Trump and Eastman had worked together to try to convince then-Vice President Mike Pence to obstruct Congress’s certification of the Electoral College votes.

“Had this effort succeeded, the electoral count would have been obstructed, impeded, influenced, and (at the very least) delayed, all without any genuine legal justification and based on the false pretense that the election had been stolen. There is no genuine question that the President and Plaintiff attempted to accomplish this specific illegal result,” the committee wrote in its filing.

The committee also claims it “has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States.”

A spokesperson for Trump did not immediately respond to a request for comment. 

The accusations are the most serious that the committee has leveled against Trump so far. The allegations filed on Wednesday are not formal charges nor do they indicate that the former president could face a criminal prosecution, but they signal that the committee has set its sights at the highest levels in probing what led up to the Capitol riot.

The filing came in response to Eastman’s lawsuit seeking to block the committee’s subpoena for his private communications, which he has argued are privileged, in part because of his legal work on behalf of the former president.

But the committee argues that Eastman, an attorney for the Trump campaign, may not claim his conversations with the former president are covered by attorney-client privilege, partly because legal advice rendered with the intention of committing a crime is not protected.

Their filing on Wednesday asked the judge to review requested records personally in order to determine whether they fall under the crime-fraud exception to attorney-client privilege. 

“The Select Committee’s brief refutes on numerous grounds the privilege claims Dr. Eastman has made to try to keep hidden records critical to our investigation. The Select Committee is not conducting a criminal investigation. But, as the judge noted at a previous hearing, Dr. Eastman’s privilege claims raise the question whether the crime-fraud exception to the attorney-client privilege applies in this situation,” Chairman Bennie Thompson (D-Miss.) said in a statement.

“We believe evidence in our possession justifies review of these documents under this exception in camera. The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power.”

While the committee does not have prosecution power, it’s planning to release a report of its findings, which could be formally referred to the Justice Department, which could then weigh whether to pursue any charges. 

But the extraordinary accusation indicates the breadth of evidence that the committee has obtained in its investigation into the riot at the Capitol and the events leading to it.

The filing includes depositions with a number of high-ranking former Trump officials, including those who worked for Pence, like his national security advisor Keith Kellogg and Pence’s White House counsel Greg Jacob, who opposed plans to have Pence buck his ceremonial duties to certify the election results.

The documents also include heated emails between Eastman and Jacob, who criticized him for forwarding legal advice that “functioned as a serpent in the ear of the President of the United States.”

“Respectfully it was gravely, gravely irresponsible for you to entice the President with an academic theory that had no legal viability, and that you well know would lose before any judge who decided the case,” Jacob wrote.

In an earlier email, Jacob wrote he did not believe “there is a single justice on the United States Supreme Court” who is as “broad minded” as Eastman, saying his plan didn’t fit within “every legal trail placed before me.”

It also includes a transcript of the deposition with Eastman, during which he invoked his Fifth Amendment right against self-incrimination 146 times. He has also been ordered by the court to review 1,500 of his emails a day for content that might be covered by executive privilege.

It’s still unclear how the judge in the case will rule on Eastman’s privilege claims. A hearing for the case is scheduled for Tuesday.

Charles Burnham, an attorney for Eastman, said the Trump attorney "has a responsibility to protect client confidences, even at great personal risk and expense."

"The Select Committee has responded to Dr. Eastman's efforts to discharge this responsibility by accusing him of criminal conduct. Because this is a civil matter, Dr. Eastman will not have the benefit of the Constitutional protections normally afforded to those accused by their government of criminal conduct. Nonetheless, we look forward to responding in due course."

Updated on March 3 at 7:49 a.m.